EXHIBIT 10.16
FIFTH ADDITIONAL SPACE AGREEMENT
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AGREEMENT made as of the 13th day of May, 1997 between 00 XXXXX XXXXXX
COMPANY, a New York partnership having its principal office at 000 Xxxx Xxxxxx,
Xxxxxxx xx Xxxxxxxxx, Xxxx, Xxxxxx and State of New York, as landlord (referred
to herein as "Owner"), and N2K INC., a Pennsylvania corporation authorized to
transact business in the State of New York, having an office at 00 Xxxxx Xxxxxx,
Xxxxxxx xx Xxxxxxxxx, Xxxx, Xxxxxx and State of New York, as tenant (referred to
herein as "Tenant").
W I T N E S S E T H :
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WHEREAS:
(1) Under date of September 7, 1995, Owner and N2K Inc., a New York
corporation, Tenant's predecessor in interest, entered into a lease affecting
portions of the tenth (10th) and eleventh (11th) floors in the building
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(referred to herein as the "Building") known as 00 Xxxxx Xxxxxx, Xxxxxxx xx
Xxxxxxxxx, Xxxx, Xxxxxx and State of New York; and
(2) N2K Inc. a New York corporation, merged into Tenant by statutory
merger effective February 13, 1996; and
(3) Said lease, as modified by written agreements dated December 31,
1995, April 1, 1996 (said agreement dated April 1, 1996 is referred to as the
"First Additional Space Agreement"), April 2, 1996 (said agreement dated April
2, 1996 is referred to as the "Second Additional Space Agreement"), April 3,
1996 (said agreement dated April 3, 1996 is referred to as the "Third Additional
Space Agreement"), and October 15, 1996 (said agreement dated October 15, 1996
is referred to as the
"Fourth Additional Space Agreement") is for a term (referred to herein as the
"Demised Term") which shall end on January 31, 2002, unless extended pursuant to
the provisions of Article SECOND of the First, Second, Third and/or Fourth
Additional Space Agreements or sooner terminated or extended pursuant to any of
the terms, covenants or conditions of said lease or pursuant to law, and is
referred to herein as the "Lease"; and the premises so leased to Tenant pursuant
to the provisions of the Lease, together with all appurtenances, fixtures,
improvements, additions and other property attached thereto or installed therein
at any time during the Demised Term other than Tenant's Personal Property (as
defined in the Lease), are referred to herein, collectively, as the "Demised
Premises"; and
(4) Tenant now desires to lease and add to the Demised Premises a
portion of the street level floor of the Building and Owner is willing to lease
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said portion of the street level floor to Tenant, subject to the provisions of
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this Agreement (said portion of the street level floor of the Building,
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initialled by the parties, annexed hereto and made part hereof as Exhibit "1",
together with all appurtenances, fixtures, improvements, additions and other
property attached thereto or installed therein at any time during the Demised
Term, other than Tenant's Personal Property as defined in the Lease, is referred
to herein as the "Fifth Additional Space"); and
(5) The Demised Term of the Lease applicable to the Fifth Additional
Space shall commence on a date (referred to as the "Fifth Additional Space
Commencement Date") fixed by Owner in a notice to Tenant, not sooner than ten
(10) days next following the date of the giving of such notice, which notice
shall state that Owner has, or prior to the Fifth Additional Space Commencement
Date will have, substantially completed Owner's Fifth Additional Construction
(as more fully described in Addendum A, which is annexed hereto and made part
hereof); and
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(6) All capitalized terms shall have the same meanings ascribed to
them in the Lease, unless otherwise set forth herein; and
(7) The parties desire to record herein their understandings with
respect to the foregoing.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties agree as follows:
FIRST: The Lease is hereby modified as follows:
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A. Owner hereby leases to Tenant and Tenant hereby hires from
Owner the Fifth Additional Space for a term to commence upon the Fifth
Additional Space Commencement Date and to end on the Expiration Date (as it may
have been extended pursuant to the First, Second, Third, and/or Fourth
Additional Space Agreements or the Lease and pursuant to the provisions of this
Agreement), unless the Demised Term shall sooner terminate pursuant to any of
the terms, covenants or conditions of the Lease or pursuant to law.
B. Owner agrees to perform work and make installations in the
Fifth Additional Space as set forth in Addendum A. Such work and installations
are referred to as "Owner's Fifth Additional Construction". All of the terms,
covenants and conditions of Addendum A are incorporated in this Agreement by
reference and shall be deemed a part of this Agreement as though fully set forth
in the body of this Agreement. Owner acknowledges that Tenant shall have the
right to use the existing two (2) three ton supplemental air conditioning units,
which units shall be in working order as of the date hereof, and the existing
dedicated 400 Amp feed and 400 Amp distribution panel serving the Fifth
Additional Space, at Tenant's expense, subject to the provisions of the Lease
and this Agreement.
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C. From and after the Fifth Additional Space Commencement Date,
the Lease shall be deemed modified, as follows:
(1) a. The Demised Premises shall include the Fifth
Additional Space for all purposes of the Lease;
b. Section 2.01 of the Lease shall be modified
to the extent that, in addition to the use set forth in said Section 2.01, the
Fifth Additional Space may also be used as a recording studio by Tenant and
others under Tenant's supervision as incidental to Tenant's use, but otherwise
upon all of the terms, covenants and conditions of this Lease on Tenant's part
to be observed and performed, with the express understanding that noise or
vibration from the Fifth Additional Space shall not reach outside the Fifth
Additional Space, it being further agreed by Tenant that the provisions of
subsection H of Section 3.01 shall expressly apply to the intended use of the
Fifth Additional Space.
(2) a. The Fixed Rent reserved in the Lease shall be
increased by the sum of ONE HUNDRED FIFTEEN THOUSAND THREE HUNDRED SIXTY-EIGHT
and 00/100 ($115,368.00) DOLLARS per annum with respect to the period from the
Fifth Additional Space Commencement Date to and including February 28, 2001 and
the sum of ONE HUNDRED TWENTY-SEVEN THOUSAND FIVE HUNDRED TWELVE and 00/100
($127,512.00) DOLLARS per annum with respect to the remainder of the Demised
Term applicable to the Fifth Additional Space and the monthly installments of
Fixed Rent shall be increased accordingly.
b. In the event that the Fifth Additional Space
Commencement Date shall occur on a date other than the first (1st) day of any
calendar month, then the increase in the Fixed Rent for the month in which the
Fifth Additional Space Commencement Date shall occur shall be prorated.
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c. Fifth Additional Space Rent Holiday.
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Provided Tenant is not then in default in the observance and performance of any
of the terms, covenants and conditions of the Lease on Tenant's part to be
observed and performed, Tenant shall be entitled to a rent holiday and shall not
be required to pay any portion of the Fixed Rent applicable to the Fifth
Additional Space with respect to the period from the Fifth Additional Space
Commencement Date to and including February 28, 1998 but, during such period,
Tenant shall otherwise be required to comply with all of the other terms,
covenants and conditions of this Lease on Tenant's part to be observed and
performed, including, but not limited to, the provisions of Article 23 and
Article 29. In the event the Fifth Additional Space Commencement does not occur
until March 1, 1998 or thereafter, Tenant shall not be entitled to any Rent
Holiday with respect to the Fifth Additional Space, it being understood and
agreed that such Rent Holiday shall apply only until February 28, 1998, unless
Owner causes any delay in the occurrence of the Fifth Additional Space
Commencement Date and, in such event, the Rent Holiday shall be extended by the
number of days of any such delay.
(3) The Demised Premises Area, as set forth in Section
23.01, shall be further increased by 3,036 square feet and Article 29.
(4) With respect to the Fifth Additional Space only,
the following new Section 29.10 entitled "Electricity: Fifth Additional Space"
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shall be deemed added to the Lease as of the date hereof:
"A. Owner shall redistribute or furnish electrical energy to or
for the use of Tenant in the Fifth Additional Space for the operation of the
lighting fixtures and the electrical receptacles installed in the Fifth
Additional Space on the Commencement Date and the operation of the Building
heating, ventilating and air conditioning system unit serving the floors of the
Building on which the Fifth Additional Space is located. If either the quantity
or character of electrical service is changed by the corporation(s) and/or other
entity(ies) selected by Owner to supply electrical service to the Building or
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is no longer available or suitable for Tenant's requirements, or if any
equipment supplementing or ancillary to such electrical service which is
installed in the Building by or on behalf of said corporation(s) and/or other
entity(ies) malfunctions or fails to operate for any reason while Tenant has
made any connections to said equipment, no such change, unavailability,
unsuitability, malfunction or failure to operate shall constitute an actual or
constructive eviction, in whole or in part, or entitle Tenant to any abatement
or diminution of rent, or relieve Tenant from any of its obligations under this
Lease, or impose any liability upon Owner, or its agents, by reason of
inconvenience or annoyance to Tenant, or injury to or interruption of Tenant's
business or otherwise, unless such change, unavailability or unsuitability is
caused by Owner's negligence or willful misconduct or the negligence or willful
misconduct of Owner's agents, employees or contractors. In the event the
corporation(s) and/or other entity(ies) selected by Owner shall be different
from such corporation(s) and/or other entity(ies) presently providing electrical
service to the Building as of the date hereof, any such new or replacement
corporation(s) and/or other entity(ies) selected by Owner shall be reputable and
provide competitive rates.
B. Owner shall provide for an electrical load of six (6) xxxxx
per square foot of usable area demand load other than during any period it is
prohibited from doing so by any laws, orders, rules and/or regulations of any
applicable governmental authorities (including, but not limited to, the New York
State Energy Conversation Construction Code) in which event the reference to six
(6) xxxxx hereinabove set forth shall, during such period, be decreased to the
maximum number of xxxxx per usable square foot which is permitted by any such
laws, orders, rules and/or regulations. The foregoing shall be exclusive of the
electrical power for the Building HVAC systems. Solely for the proposes of this
section, the Fifth Additional Space shall be deemed to contain 3,036 square
feet. Any additional feeders or risers to supply Tenant's additional electrical
requirements, and all other equipment proper and necessary in connection with
such feeders or risers shall be installed by Owner upon Tenant's request, at the
sole cost and expense of Tenant, provided, that, in Owner's judgment, such
additional feeders or
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risers are necessary and are permissible under applicable laws and insurance
regulations and the installation of such feeders or riders will not cause
permanent damage or injury to the Building or the Fifth Additional Space or
cause or create a dangerous or hazardous condition or entail excessive or
unreasonable alterations or repairs to or interfere with or disturb other
tenants or occupants of the Building. Tenant covenants that at no time shall the
use of electrical energy in the Fifth Additional Space exceed the capacity of
the existing feeders or risers or wiring installations then serving the Fifth
Additional Space.
C. Prior to the Fifth Additional Space Commencement Date Owner,
at Owner's expense, shall have installed a submeter or submeters in the Fifth
Additional Space to measure Tenant's actual consumption of electricity in the
entire Fifth Additional Spare including, but not limited to, all electricity
required for the operation of the Building heating, ventilating and air
conditioning system unit serving the floor of the Building on which the Fifth
Additional Space are located. Tenant shall pay to Owner, from time to time, upon
demand, for the electricity consumed in the Fifth Additional Space, as
determined by such submeter or submeters, the actual cost to Owner of purchasing
electricity for the Fifth Additional Space (as such actual cost is hereinafter
defined) plus all applicable taxes thereon. Owner's actual cost for Tenant's KW
and KWH shall be determined by the application of the Building's electric rate
schedule per month from the corporation(s) and/or other entity(ies) selected by
Owner to supply electrical service to the Building to Tenant's usage. With
respect to any period when any such submeter is not in good working order,
Tenant shall pay Owner for electricity consumed in the portion of the Fifth
Additional Space served by such submeter at the rate paid by Tenant to Owner
during the most recent comparable period when such submeter was in good working
order. Tenant shall take good care of any such submeter and all submetering
installation equipment, at Tenant's sole cost and expense, and make all repairs
thereto occasioned by any acts, omissions or negligence of Tenant or any person
claiming through or under Tenant as and when necessary to insure that any such
submeter is, at all times
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during the Demised Term, in good working order. With respect to the period
(referred to as the "Interim Period"), if any, from the Fifth Additional Space
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Commencement Date through the date immediately prior to the date upon which the
submeter or submeters shall be operable, Tenant shall pay to Owner monthly on
demand of Owner, for the electricity consumed in the Fifth Additional Space, a
sum equal to one-twelfth (1/12th) of the product of (x) $1.50 multiplied by (y)
3,036. With respect to any period during the Interim Period constituting less
than a full calendar month, the monthly payment referred to in the preceding
sentence shall be appropriately prorated.
D. (1) Owner may, at any time, elect to discontinue the
redistribution or furnishing of electrical energy. In the event of any such
election by Owner, (i) Owner agrees to give reasonable advance notice of any
such discontinuance to Tenant, (ii) Owner agrees to permit Tenant to receive
electrical service directly from the corporation(s) and/or other entity(ies)
selected by Owner to supply electrical service to the Building and to permit the
existing feeders, risers, wiring and other electrical facilities serving the
Fifth Additional Space to be used by Tenant for such purpose to the extent they
are suitable and safely capable, (iii) Owner agrees to pay such charges and
costs, if any, as such corporation(s) and/or other entity(ies) may impose in
connection with the installation of Tenant's meters, (iv) the provisions of
Subsection C of this Section 29.10 shall be deemed deleted from this Lease, and
(v) this Lease shall remain in full force and effect and such discontinuance
shall not constitute an actual or constructive eviction, in whole or in part, or
entitle Tenant to any abatement or diminution of rent, or relieve Tenant from
any of its obligations under this Lease, or impose any liability upon Owner or
its agents by reason of inconvenience or annoyance to Tenant, or injury to or
interruption of Tenant's business, or otherwise.
(2) Notwithstanding anything to the contrary contained in
subsection D(1) of this Section 29.10, Owner agrees that Owner shall not
voluntarily discontinue the redistribution or furnishing of electrical energy
until Owner shall have made or paid for all installations required to
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provide Tenant with electrical service similar to the electrical service which
Tenant had in the Fifth Additional Space immediately prior to such
discontinuance and the public utility corporation(s) and/or other entity(ies)
supplying electrical service to the Building has agreed to furnish such service
so that Tenant shall immediately upon such discontinuance be able to receive
electrical service directly from such public utility corporation(s) and/or other
entity(ies). Unless a shorter time is required by the public utility
corporation(s) and/or other entity(ies) supplying electrical service to the
Building, Owner shall give Tenant at least ninety (90) days' prior notice of any
such discontinuance.
E. Notwithstanding anything to the contrary set forth in this Lease,
any sums payable or granted in any way by the corporation(s) and/or other
entity(ies) selected by Owner to supply electricity to the Building resulting
from the installation in the Fifth Additional Space of energy efficient lighting
fixtures, lamps, special supplemental heating, ventilation and air conditioning
systems or any other Alterations, which sums are paid or given by way of rebate,
direct payment, credit or otherwise, shall be and remain the property of Owner,
and Tenant shall not be entitled to any portion thereof, unless such lighting
fixtures, lamps, supplemental heating, ventilation and air conditioning systems
or other Alterations were installed by Tenant, solely at Tenant's expense,
without any contribution, credit or allowance by Owner, in accordance with all
of the provisions of this Lease. For the purposes of the preceding sentence any
such lighting fixtures, lamps, supplemental heating, ventilation and air
conditioning systems or other Alterations comprising part of Owner's Fifth
Additional Construction shall be deemed installed solely at Tenant's expense.
Nothing contained in the foregoing sentence, however, shall be deemed to
obligate Owner to supply or install in the Fifth Additional Space any such
lighting fixtures, lamps, supplemental heating, ventilation and air conditioning
systems or other Alterations.
F. Tenant acknowledges that the Building heating, ventilating and
air conditioning system unit serving the floor of the Building on which the
Demised Premises are located (referred to herein as the "Floor HVAC Unit") shall
not be connected to the submeter(s) serving the
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Demised Premises, but, instead, shall be connected to a separate meter(s)
measuring the electrical energy consumed by such Floor HVAC Unit. Accordingly,
Tenant agrees that during the Demised Term, Tenant shall pay to Owner, from time
to time upon demand of Owner and submission by Owner to Tenant of invoices or
bills therefor, forty-five and 97/100 (45.97%) percent (hereinafter "Tenant's
Electrical Share") of all amounts shown on said separate meter(s) for such Floor
HVAC Unit.
G. In no event will any of the costs for the light, power or HVAC
system serving the lobby, or other public areas of the floor of which the
Demised Premises are a part, be included in Tenant's Electric Share."
SECOND: a. From and after the Fifth Additional Space Commencement
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Date, the date August 31, 2002 shall be deemed to be the Expiration Date and the
Demised Term shall expire on August 31, 2002, unless sooner terminated pursuant
to the provisions of the Lease or pursuant to law, and all of the then
applicable executory terms, covenants and conditions set forth in the Lease
(including, but not limited to, the provisions of Articles 23 and 29) shall
apply with respect to the remainder of the Demised Term as herein and hereby
extended.
b. Supplementing the provisions of subsection D of Section 1.02,
after the determination of the Fifth Additional Space Commencement Date, each
party agrees, upon demand of the other, to execute, acknowledge and deliver to
each other, an instrument, in form reasonably satisfactory to Owner, setting
forth said Fifth Additional Space Commencement Date and the Expiration Date,
which instrument shall include the amounts of the annual and monthly Fixed Rent
for the remainder of the Demised Term.
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THIRD: Owner and Tenant each represent and warrant to the other that
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Xxxxxxxxxxx & Company, L.L.C. is the sole broker with whom either party has
negotiated or otherwise dealt with in connection with the Fifth Additional Space
or in bringing about this Agreement. Owner and Tenant shall indemnify each other
from all loss, cost, liability, damage and expenses, including, but not limited
to, reasonable counsel fees and disbursements, arising from any breach of the
foregoing representation and warranty. Owner shall pay any commission or
compensation due hereunder pursuant to a separate agreement with such broker.
FOURTH: A. Notwithstanding the provisions of Paragraph (5) of the
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WHEREAS provision of the Fourth Additional Space Agreement, the Fourth
Additional Space Commencement Date and the Fourth Additional Space Rent
Commencement Date applicable to the twenty-fifth (25th) floor portion of the
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Fourth Additional Space is fixed at June 1, 1997.
B. Notwithstanding the provisions of Paragraph (5) of the
WHEREAS provision of the Fourth Additional Space Agreement, the Fourth
Additional Space Commencement Date and the Fourth Additional Space Rent
Commencement Date applicable to the twenty-sixth (26th) floor portion of the
Fourth Additional Space is fixed at March 21, 1997.
C. Effective as of the date hereof, Paragraph FIRST C.(2)a. of
the Fourth Additional Space Agreement, shall be deleted and a new Paragraph
FIRST C.(2)a. and b. shall be inserted in lieu thereof as follows:
"(2) a. With respect to the twenty-sixth (26th) floor portion of
the Fourth Additional Space, effective as of March 21, 1997 to and
including February 28, 1998 the Fixed Rent reserved in the Lease shall
be increased by the sum of ONE HUNDRED FORTY THOUSAND and 00/100
($140,000.00) DOLLARS per annum, and effective as of March 1, 1998 to
and including February 28, 1999, the Fixed Rent reserved in the Lease
shall be increased by the sum of TWO HUNDRED FORTY THOUSAND and 00/100
($240,000.00) DOLLARS per annum and, effective as of March 1, 1999 to
and including August 31, 2002, the Fixed Rent reserved in the Lease
shall be increased by
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the sum of TWO HUNDRED SIXTY THOUSAND and 00/100 ($260,000.00) DOLLARS
per annum and the monthly installments of Fixed Rent with respect
thereto shall be increased accordingly; and
b. With respect to the twenty-fifth (25th) floor portion of
the Fourth Additional Space, effective as of June 1, 1997 to and
including March 14, 1998, the Fixed Rent reserved in the Lease shall
be increased by the sum of ONE HUNDRED FORTY and 00/100 ($140,000.00)
DOLLARS per annum and, effective as of March 15, 1998 to and including
March 14, 1999, the Fixed Rent reserved in the Lease shall be
increased by the sum of TWO HUNDRED AND FORTY THOUSAND and 00/100
($240,000.00) DOLLARS per annum and, effective as of March 15, 1999 to
and including August 31, 2002, the Fixed Rent reserved in the Lease
shall be increased by the sum of TWO HUNDRED SIXTY THOUSAND and 00/100
($260,000.00) DOLLARS per annum and the monthly installments of Fixed
Rent with respect thereto shall be increased accordingly."
D. The use of the two (2) existing supplemental air
conditioning units and any future supplemental air conditioning unit serving the
Fifth Additional Space shall be governed by the provisions of the Lease and the
following paragraph:
"Tenant's Supplemental A/C Units/Cooling Tower:
A. Supplementing the provisions of Section 29.06, Owner agrees,
subject to the provisions of Article 26 and Section 29.08, to supply condenser
water to any separate air conditioning system to serve the Fifth Additional
Space installed by or on behalf of Tenant in accordance with the provisions of
this Lease (referred to herein as "Tenant's Supplemental A/C Unit") and Tenant
agrees that (i) Tenant shall pay to Owner, promptly after demand, all reasonable
costs and expenses incurred by Owner in connection with the hookup of any such
Unit to any Building cooling tower and associated piping (referred to herein as
the "Cooling Tower"), including, but not limited to, the Building standard
hookup fee then charged by Owner, which fee shall be waived for the existing two
(2) three (3) ton units, and (ii) from and after the date the hookup is
completed, if applicable, the Fixed Rent reserved in this Lease shall be
increased by a sum (referred to herein as the "Tenant's Cooling Tower Use
Charge") equal to (x) the standard per ton charge then in effect in the
Building, which is presently $75.00 per ton per annum multiplied by (xx) the
number of tons of Tenant's Supplemental A/C Units.
B. If the regular hourly wage rate of operating engineers
employed in the Building shall be increased in any Escalation Year (as defined
in Article 23) over the rate in effect on the January 1st immediately preceding
such hookup, the Tenant's Cooling Tower Use Change for such Escalation Year
shall be increased by an amount equal to that proportion of Tenant's Cooling
Tower Use Charge which such increase in said hourly wage rate bears to the
hourly wage rate in effect on the January 1st immediately preceding such hookup.
Any such increase for any Escalation Year pursuant to the provisions of the
immediately preceding sentence shall be shown on the Owner's Operating Expense
Statement with respect to such Escalation Year rendered by Owner pursuant to the
provisions of said Article 23, and shall be payable by Tenant as if it were an
increase in the Fixed Rent pursuant to the provisions of said Article 23.
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C. Any increase in Fixed Rent for Tenant's Cooling Tower Use
Charge shall be effective as of the date Tenant's Supplemental A/C Unit is
hooked up to the Cooling Tower and shall be retroactive to such date if
necessary.
D. Tenant's Supplemental A/C Unit shall be repaired and
maintained by Tenant at Tenant's cost and expense, pursuant to a service
contract.
E. In the event Tenant elects to discontinue its use of either or
both of such Tenant's Supplemental A/C Units and remove either or both of same,
such removal shall be performed in accordance with the applicable provisions of
this Lease and thereafter Tenant's Cooling Tower Use Charge therefor shall be
reduced accordingly and Tenant thereafter shall not be required to replace said
Unit(s)."
FIFTH: Except to the extent expressly modified by the foregoing
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provisions of this Agreement, the Lease is hereby ratified and confirmed in all
respects.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
and seals as of the day and year first above written.
00 XXXXX XXXXXX COMPANY, Owner
BY: /s/ [SIGNATURE ILLEGIBLE]
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N2K INC., Tenant
BY: /s/ Xxxxxxxx X. Xxxxxxx
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Xxxxxxxx X. Xxxxxxx, Vice Chairman
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STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
On the day of April, 1997, before me personally came Xxxxxxxx
X. Xxxxxxx to me known, who, being by me duly sworn, did depose and say that he
resides at that he is the Vice Chairman of
N2K INC., the corporation described in and which executed the foregoing
instrument; and that he signed his name thereto by authority of the Board of
Directors of said corporation.
/s/ Xxxxxxx X. Xxxxxx
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Notary Public
XXXXXXX X. XXXXXX
Notary Public State of New York
No. 01HA5063401
Qualified in New York County
Commission Expires July 22, 1998
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